Judgment M.L.Visa, J. 1. Since both the appeals are directed against the judgment dated 14.6.2001 and order dated 18.6.2001 passed by 1st Additional Sessions Judge, Madhepura in Sessions Case No. 53 of 1990 convicting and sentencing Shyam Yadav @ Shyam Prasad Yadav, appellant of Criminal Appeal No. 272 of 2001 to undergo rigorous imprisonment for life and to pay a fine of Rs. 25,000.00 and in default to undergo additional rigorous imprisonment for two years under Sec. 302 of Indian Penal Code (in short "IPC"} and convicting and sentencing Jodhan Yadav, one of the six appellants of Criminal Appeal No. 258 of 2001 to undergo rigorous imprisonment for life and to pay a fine of Rs. 10,000.00 and in default to undergo additional rigorous imprisonment for one year under Sec. 302 read with Secs. 149 and 109 of IPC and convicting and sentencing Baikhuntha Yadav, Bhupendra Yadav, Mukund Yadav, Mahendra Yadav and Pramod Yadav, remaining appellants of Criminal Appeal No. 258 of 2001 to undergo rigorous imprisonment for life and to a fine of Rs. 5,000.00 each and in default to undergo rigorous imprisonment for six months under Secs. 302/149 of IPC and further convicting and sentencing appellant Pramod Yadav to undergo/rigorous imprisonment for one year under Sec. 323 of IPC, have been heard together and are being dispose of by this common judgment. Out of the realised amount of fine, 75% thereof has been ordered to be paid to the father and/ or wife of deceased Jay Kumar Yadav. 2. Case of prosecution; in short, is that on 31.12.1989 at about 2.30 p.m. deceased Jay Kumar Yadav, son of informant Rajendra Yadav (PW 6) was lifting his sick buffalo at his darwaza when hulla was heard from a place about five hundred yards east to the house of informant and hearing hulla, Jay Kumar Yadav started running to that place and informant also followed him and when they both reached the road of District Board, they saw appellants Shyam Prasad Yadav, Jodhan Yadav, Bikhuntha Yadav, Bhupendra Yadav, Mukund Yadav and Pramod Yadav armed with lathis and appellant Mahendra Yadav armed with arrows and bow. The appellants, after surrounding the buffaloes of villagers of informant and driving those buffaloes, had brought them in the field of one Tunai Rishideo and from there were driving the buffaloes towards their village. The appellants, after surrounding the buffaloes of villagers of informant and driving those buffaloes, had brought them in the field of one Tunai Rishideo and from there were driving the buffaloes towards their village. Jay Kumar Yadav and Ganesh Kumar Yadav (PW 4) asked the appellants to release the buffaloes on which Jodhan Yadav ordered his companions to kill Jay Kumar Yadav and after it, appellant Shyam Yadav gave a lathi blow on the head of Jay Kumar Yadav who, after receiving injury, fell down in the field. Appellant Pramod Yadav hurled lathi blow on Ganesh Yadav. When informant went to rescue his son, he found that his son Jay Kumar Yadav had received a bleeding injury on left side of his temple and had become unconscious. Informant raised hulla and appellants started fleeing away towards their houses. The occurrence was seen by Ganesh Kumar Yadav (PW 4), Bijendra Yadav (PW 3), Shivnandan Yadav (PW 5), Yogendra Yadav (not examined) and others. The informant, with the help of his villagers, brought his unconscious son Jay Kumar Yadav to Madhepura Sadar Hospital where the doctor, after examining Jay Kumar Yadav, declared him dead. The fardbeyan of informant was recorded at Madhepura Hospital on 31.12.1989 at 5 p.m. by Sub-Inspector G.P. Singh (not examined). About the motive, the informant, in fardbeyan, has stated that appellants Jodhan Yadav and Shyam Yadav had taken a land about twenty five yards south to the place of occurrence on oral lease from Kailu Mushar and buffaloes were grazing in a land adjacent to the land taken by the aforesaid appellants on lease and for this reason appellants, after dragging the buffaloes, were taking them to their house which was objected to by shepherds of the village of informant also. On the basis of fardbeyan, a case under Secs. 147, 148, 149, 307 and 302 of IPC was registered against the appellants and after investigation, charge-sheet was submitted against all the appellants, cognizance was taken and case was committed to the Court of Sessions and after trial, appellants were found guilty and were convicted and sentenced, as indicated above. 3. Altogether nine witnesses on behalf of prosecution have been examined in this case. 3. Altogether nine witnesses on behalf of prosecution have been examined in this case. Jawahar Yadav (PW 1) is a formal witness who has proved the formal first information report (Exhibit-1), Mithilesh Kumar (PW 2), Bijendra Yadav (PW 3), Ganesh Kumar Yadav (PW 4), Shivnandan Yadav (PW 5) and Satya Narain Yadav (PW 7) are eye-witnesses to the occurrence. Rajendra Yadav (PW 6) is the Informant. Dr. R.P. Yadav (PW 8) is the doctor who had conducted autopsy on the dead body of deceased. Sikandar Yadav (PW 9) is also a formal witness who has proved the fardbeyan (Exhibit-5) in the writing of G.P. Singh. 4. Dr. R.P. Yadav (PW 8) has said that on 1.1.1990, he was posted as Civil Assistant Surgeon at Sadar Hospital, Madhepura and on that day at about 12.30 p.m., he examined the dead body of deceased and found the following ante-mortem injury : One lacerated wound 2" x 1-1/2" x bone deep on the left temple just above the pinna of the left ear. He has further stated that on dissection of above injury, he found haematoma underneath the scalp with fracture of the left temporal bone on the same side and on dissection of skull and brain, there was extradural and subdural haemorrhage and in his opinion, the cause of death was shock and haemorrhage due to above injury. He has said that time elapsed since death was twenty four hours. He has proved his postmortem examination report which is marked Exhibit-4. In cross-examination, he has said that there was only one injury over the person of dead body and the injury was not cause by contact alone with hard and blunt substance and it was not bleeding externally and bleeding stops after death. His evidence simply suggests that the deceased died of an injury sustained by him above his temple. His evidence does not disclose any manner in which this injury would have been caused. 5. His evidence simply suggests that the deceased died of an injury sustained by him above his temple. His evidence does not disclose any manner in which this injury would have been caused. 5. Rajendra Yadav (PW 6), the informant, in his evidence, has said that at the time of occurrence, he was at his darwaza where he and his son were lifting a buffalo which was sick and he heard hulla coming from the eastern side of his house and his son Jay Kumar Yadav ran towards that place and Ganesh Yadav and he also followed him and when they covered a distance of about two hundred yards and reached a road of District Board, they found appellant Mahendra Yadav carrying arrows and bow and other appellants carrying lathis and when they reached by the side of the field of Tunai Rishideo, they saw that all the appellants had surrounded buffaloes which were about ten in number including his two buffaloes and buffaloes of his agnates and appellants wanted to drive the buffaloes to their village and when his son Jay Kumar Yadav and Ganesh Yadav raised objection, appellant, Jodhan Yadav asked appellant Shyam Yadav to kill them on which appellant Shyam Yadav gave lathi blow on the temple of his son who, after receiving injury, fell down and when Ganesh Yadav went to rescue him, appellant Pramod Yadav gave a lathi blow on his right thigh and when he, raising hulla, went to rescue his son, he found him unconscious with a bleeding injury on his left temple. He then raised hulla that his son had been killed and, thereafter, appellants fled away. He has said that besides himself, Mithilesh Yadav (PW 2), Bijendra Yadav (PW 3), Shivnandan Yadav (PW 5), Yogendra Yadav (not examined) saw the occurrence. He has further said that thereafter villagers brought a cot on which his son was brought to Sadar Hospital, Madhepura where, after examining him, doctor declared him dead. He has further said that police came to the place of occurrence at about 5 p.m. and recorded his fardbeyan on which he put his signature (Exhibit-2/4). About the motive of occurrence, he has said that his son had raised protest for taking away the buffaloes. In para 12 of his cross-examination, he has said that only one lathi blow was given on the temple of his son. About the motive of occurrence, he has said that his son had raised protest for taking away the buffaloes. In para 12 of his cross-examination, he has said that only one lathi blow was given on the temple of his son. In para 19, his attention has been drawn about his previous statement where he had stated that appellant Shyam Yadav inflicted lathi injury on his right thigh and his son had received a bleeding injury. He has replied that he had given such statement before Investigating Officer. Mithilesh Kumar (PW 2) has said that at the time of occurrence, he was grazing a buffalo when he heard hulla from the field of Tunai Rishideo and when he went there, he found appellant Mahendra Yadav armed with arrows and bow and remaining appellants with lathi and appellants were taking away the buffaloes of his mohalla and when deceased Jay Kumar Yadav alongwith Ganesh Yadav {PW 4), Bijendra Yadav (PW 3), Yogendra Yadav (not examined), Shivnandan Yadav (PW 5) and informant went there and asked the appellants why they were taking away the buffaloes and told them to release the buffaloes, appellant Jodhan Yadav ordered appellant Shyam Yadav to kill him and, thereafter, appellant Shyam Yadav gave a lathi blow on the left temple of Jay Kumar Yadav who, after receiving injury, fell down and informant went to rescue him and saw that Jay Kumar Yadav had received a bleeding injury and, thereafter, appellant Pramod Yadav assaulted Ganesh Yadav with lathi and, thereafter, hulla was raised and appellants fled away. In para 11, his attention has been drawn towards his earlier statement before Investigating Officer by asking him whether he had earlier stated that on hearing hulla, he went to the field of Tunai Rishideo where he saw appellant Mahendra Yadav armed with arrows and bow and other appellants armed with lathi and when deceased Jay Kumar Yadav, Ganesh Yadav. In para 11, his attention has been drawn towards his earlier statement before Investigating Officer by asking him whether he had earlier stated that on hearing hulla, he went to the field of Tunai Rishideo where he saw appellant Mahendra Yadav armed with arrows and bow and other appellants armed with lathi and when deceased Jay Kumar Yadav, Ganesh Yadav. Yogendra Yadav, Bijendra Yadav and Shivnandan Yadav asked the appellants to release the buffaloes, appellant Jodhan Yadav ordered appellant Shyam Yadav to kill on which appellant Shyam Yadav gave a lathi blow on the temple of deceased and when he went to rescue him, he saw a bleeding injury on his temple and when Ganesh Yadav went to rescue deceased Jay Kumar Yadav, appellant Pramod Yadav assaulted him with lathi He has replied that he had given such statement before Investigating Officer. Bijendra Yadav (PW 3) has said that at the time of occurrence, he was at his darwaza and on hearing hulla, he ran towards the place followed by Jay Kumar and at the place of hulla, he found appellant Mahendra Yadav armed with arrows and bow and remaining appellants armed with lathis and they all were taking away the cattle by driving them from the field of Tunai Rishideo and when deceased and Ganesh Yadav raised objection, appellant Jodhan Yadav ordered to kill them on which appellant Shyam gave a lathi blow on the temple of deceased who fell down and when Ganesh Yadav went to rescue him, he was assaulted by Pramod Yadav by lathi and he received injury on his right side of thigh and in the meantime, informant raised hulla and the appellants fled away. In para 11, his attention has been drawn whether before police, he had stated that deceased had gone with him to the place of occurrence and appellants, after surrounding buffaloes, had kept it in a field. Ganesh Yadav raised objection and he had gone to rescue the deceased and Shivnandan Yadav, Satya Narain Yadav and Mithilesh Yadav had gone to place of occurrence. He has replied that he had made such statement before police. Ganesh Yadav raised objection and he had gone to rescue the deceased and Shivnandan Yadav, Satya Narain Yadav and Mithilesh Yadav had gone to place of occurrence. He has replied that he had made such statement before police. Ganesh Kumar Yadav (PW 4) has said that at the time of occurrence, he was grazing buffalo in a field situate towards east of the place of occurrence when appellant Mahendra Yadav armed with arrows and bow and appellants Shyam Yadav, Jodhan Yadav, Bhupendra Yadav, Baikhuntha Yadav and Pramod Yadav armed with lathis came to place of occurrence and started surrounding the buffaloes saying that they would remove the buffaloes because buffaloes would graze their crop and when shepherds started removing the buffaloes, appellants started assaulting the shepherds and thereafter, appellants brought the buffaloes in the field of one Kailu Mushar and thereafter, started taking the buffaloes to their village. This witness and others raised halla and on hearing their hulla deceased alongwith informant and Bijendra Yadav came there running and asked the appellants why they were taking away the buffaloes on which appellant Shyam Yadav said that he would take the buffaloes to Argara and started driving the buffaloes and when deceased protested, appellant Jodhan Yadav ordered Shyam Yadav to kill him and, thereafter, Shyam Yadav gave a lathi blow on the temple of deceased who, after receiving injury, fell down and became unconscious and when attempt was made by this witness to rescue deceased, appellant Pramod Yadav assaulted him with lathi and when informant went to rescue the deceased, he found bleeding injury on the temple of deceased and, thereafter, he raised hulla and appellants fled away. He has proved his signature as well as signature of Bijendra Yadav (Exhibits-2/2 and 2/3) on inquest report. In para 21, his attention has been drawn whether before police, he had stated that appellants had asked him to remove buffaloes and when he started removing the buffaloes, appellants started assaulting the shepherds and he raised hulla on which deceased, informant, and Bijendra Yadav came there running and on protest by them, appellant Shyam Yadav said that he would take the buffaloes to Argara and when he tried to rescue the deceased, appellant Pramod assaulted him with lathi. In his evidence, this witness has not named appellant Mukund Yadav. In his evidence, this witness has not named appellant Mukund Yadav. Shivnandan Yadav (PW 5) has said that at the time of occurrence, he was going to attend the call of nature when he heard hulla and when he went running to the place of occurrence, he saw Mahendra Yadav armed with arrows and bow and appellants Jodhan Yadav, Shyam Yadav, Baikhuntha Yadav, Bhupendra Yadav and Pramod Yadav armed with lathis and appellant Shyam Yadav was saying that he would take all the buffaloes to Argara on which deceased enquired from him why he would take the buffaloes to Argara and then appellant Jodhan Yadav ordered Shyam Yadav to kill on which Shyam Yadav gave lathi blow to the temple of deceased who, after receiving injury, fell down and when Ganesh Yadav went to rescue the deceased, appellant Pramod Yadav inflicted lathi blow on his leg. He has further said that when informant went to rescue his son, he found bleeding injury on his head and he then raised hulla and appellants fled away. In para 13, his attention has also been drawn whether before police, he had stated that appellant Shyam Yadav was saying that he would take the buffaloes to Argara and appellant Pramod Yadav gave a lathi blow on the leg of Ganesh Yadav and when he went near to deceased, he had seen an injury on his temple. 6. Satya Narayan Yadav (PW 7) has said that at the time of occurrence, he was grazing buffalo in a field near the place of occurrence when appellant Jodhan Yadav, Shyam Yadav, Bhupendra Yadav, Mukund Yadav alongwith two others came there. He has said that appellant Mahendra Yadav was armed with arrows and bow and remaining appellants were armed with lathis and they, after driving, brought buffaloes in the field of Tunai Rishideo where informant alongwith deceased, Ganesh Yadav (PW 4) and Rajendra Yadav (PW 6) came and deceased asked the appellants why they brought buffaloes from a barren land on which appellant Jodhan Yadav ordered appellant Shyam Yadav to kill him and then appellant Shyam Yadav gave a lathi blow on the temple of deceased who, after receiving injury, fell down and blood was oozing from his head and when Ganesh Yadav went to rescue him, appellant Pramod Yadav gave a lathi blow on his right thigh. He has said that when informant raised hulla appellants fled away towards their village. He has further said that the villagers brought the deceased to Madhepura Hospital where the doctor, after examining the deceased, declared him dead. In cross-examination, he has said that for the first time, he is giving statement in Court. 7. Rajendra Yadav (PW 6), in para 7 of his evidence, has said that police had reached the place of occurrence at about 5 p.m. and had recorded his statement. The fardbeyan (Exhibit-5) shows that it was recorded on 21.12.1989 which was the date of occurrence at 5 p.m. at Madhepura Sadar Hospital. The Investigating Officer has not been examined in this case. Ganesh Kumar Yadav (PW 4), who is said to be an injured person, in para 3 of his evidence, has said that deceased was taken to hospital at about 4 p.m. on the day of occurrence where after his examination, doctor declared him dead and in para 4 of his evidence, he has said that at about 5 p.m. police reached there and recorded the fard- beyan of informant and also his statement and statement of Bijendra Yadav and police started writing diary at about 6 p.m. His evidence shows that fardbeyan. of informant was recorded at Sadai Hospital, Madhepura. Bijendra Yadav (PW 3), in para 3 of his evidence, has also said that fardbeyan of informant was recorded at Sadar Hospital on the date of occurrence at about 5 p.m. and he and Ganesh Yadav put their signatures (Exhibit-2 and 2/1) on fardbeyan. 8. As stated above, Investigating Officer has not been examined in this case. Bijendra Yadav (PW 3), in para 3 of his evidence, has also said that fardbeyan of informant was recorded at Sadar Hospital on the date of occurrence at about 5 p.m. and he and Ganesh Yadav put their signatures (Exhibit-2 and 2/1) on fardbeyan. 8. As stated above, Investigating Officer has not been examined in this case. The Court below has taken note of this fact and has observed that "demonstrable prejudice must be shown to have been caused to the accused for the non- examination of the I.O." It has further observed that a "distinction between contradiction and vital contradiction has to be made and equally vital omissions are also to be gone into." After making these observations, it considered that the informant in his statement before police and also in fardbeyan has used the portion "head" for the part of deceased on which lathi blow was given but in his evidence, he stated it as temple and it also considered the fact that PWs 3, 4 and 5 in their evidence, have stated that buffaloes belonging to the co-villagers of informant were being taken away by the accused persons whereas in their previous statements, they have stated that buffaloes were being taken to "kine house" but has given its opinion that these contradictions are not major contradictions. In para 18 of its judgment, the Court below has referred some paragraphs of case diary after observing that "The Court is within its legitimate right to peruse the case diary." It has also observed that "of late the Investigating Officers have developed trend to record the statements of several witnesses in one and the same paragraph combined adding that they have, claiming themselves to be eyewitnesses, supported the prosecution case. It has further stated that "it has equally been noticed that at times, a particular witness is quoted in the case diary to have repeated the statement what other witnesses stated before him and supported the prosecution case and it often leads to misunderstanding as to the precise statement of a witness on a particular point and distinction between the two made before the police under Sec. 161 of Criminal Procedure Code and that of made before the Court on oath during trial. This much may be observed that Police Officers should get rid of it" But the Court below thereafter by observing that "in any view of the matter to me it appears that laches on the part of a Police Officer on this count should not be taken as an advantage to the accused else criminal justice would be a casualty for the wrongs committed by the Investigating officer" and "this has been disfavoured nay in positive terms rejected by their Lordships of Supreme Court reported in 2000 (1) PLJR (SC) 42. It has been laid by the Honble Apex Court of the land that such wrong if committed by the Investigating Officer either designedly or negligently should not benefit the accused 1999 (1) PLJR 66 (SC), if the case is otherwise proved to be true" has come to a conclusion that no demonstrable prejudice has been shown to have been caused to the defence due to non-examination of the Investigating Officer. In the present case, as stated above, attention of informant was drawn whether earlier he had stated that on hearing hulla when he went to the field of Tunai Rishideo, he saw appellants armed with arrows, bow and lathis and when deceased and others asked appellants to release the buffaloes at the order of appellant Jodhan Yadav, Shyam Yadav gave a lathi blow on the temple of deceased and when he went to rescue him, he saw bleeding injury on the temple of deceased. Similarly, attention of PW 5 has been drawn whether in his earlier statement, he has stated that he had seen any injury on the temple of deceased and Pramod Yadav gave a lathi blow on the leg of Ganesh Yadav. Attention of PW 4, who is said to be an injured witness, has also been drawn by defence whether earlier he had stated that when he tried to rescue the deceased, appellant Pramod Yadav assaulted him with lathi. Attention of PW 3 has also been drawn whether earlier he had stated that deceased had gone with him to the place of occurrence. Attention of PW 3 has also been drawn whether earlier he had stated that deceased had gone with him to the place of occurrence. These attentions of informant and other witnesses were drawn in order to discredit them after getting reply from the Investigating Officer that such statements were not made before him by them but because Investigating Officer has not been examined so defence could not get any chance to prove that informant and other witnesses had not given before Investigating Officer the statements on which their attentions have been drawn. I, therefore, find that non-examination of Investigating Officer has definitely caused great prejudice to the appellants. 9. The case of prosecution is that when the appellants were taking away buffaloes, the deceased raised objection to it and then appellant Jodhan Yadav ordered to kill him on which appellant Shyam Yadav gave a lathi blow on his head. It is the further case of prosecution that appellant Mahendra Yadav was armed with arrows and bow and remaining appellants were armed with lathis. Barring appellants Jodhan Yadav and Shyam Yadav, so far other appellants are concerned, there is no allegation of committing any overt act by them although, as stated above, they were armed with lathis, arrows, bow etc. The occurrence, as alleged, had taken place only on the point of taking away buffaloes. It is the own case of prosecution that the deceased received only one lathi blow and there was no repetition of it. The facts on record do not show that appellants had any common object to kill the deceased. If the case of prosecution without putting it on any test is accepted even then it simply shows that at the spur of moment one lathi injury was inflicted on deceased by appellant Shyam Yadav at the order of appellant Jodhan Yadav. No doubt, Dr. R.P. Yadav (PW 8), in his evidence, has said that cause of death was shock and haemorrhage due to one lacerated wound 2" x 1-1/2" x bone deep over left temple just above the pinna of the left ear but he has not given any opinion that how this injury might have been caused. On the other hand, in cross-examination, he has clearly stated that this injury was not caused by contact alone with hard and blunt substance. On the other hand, in cross-examination, he has clearly stated that this injury was not caused by contact alone with hard and blunt substance. It means that besides lathi injury received by deceased, there was something else in addition which resulted injury which was found by doctor on the dead body. Ganesh Kumar Yadav (PW 4), in para 29 of his evidence, has said that dead body of deceased was brought from a field of potato to the road of District Board where the dead body was put on a cot. He has further said that he, informant, Yogendra (not examined) and Bijendra Yadav (PW 3) had brought the dead body from field to road and although they had not wrapped the head of deceased with any cloth but then pressed his head in order to stop the flow of blood and after putting the dead body on cot, head was wrapped with a napkin and before that informant had already kept the head of deceased pressed. The informant, in para 5 of his evidence, has said that after putting the dead body of deceased on cot, it was brought to Madhepura Sadar Hospital where he and other witnesses reached at about 4 p.m. The evidence on record shows that after deceased received lathi injury by appellant Shyam Yadav and fell down, his body was handled by a number of persons in bringing it from field to road putting it on cot and then bringing it to hospital. During this process simply the injury of deceased was pressed and was wrapped by a napkin. The pressing of injury must have been for stopping the blood. It cannot be inferred that pressing aggravated the lathi injury to transform it in an injury which was not possible by contact alone of hard and blunt substance. This creates a serious doubt on the manner in which deceased received the injury. There is nothing on record to show that how the injury found on the dead body of deceased was caused. The evidence of doctor is there that injury found on the dead body of deceased was not possible by contact alone with hard and blunt substance. The medical evidence does not support the case of prosecution that deceased died of injury caused by lathi. The evidence of doctor is there that injury found on the dead body of deceased was not possible by contact alone with hard and blunt substance. The medical evidence does not support the case of prosecution that deceased died of injury caused by lathi. Since the medical evidence does not support the case of prosecution on the point of manner in which deceased received injury which was cause of death, I find that case of prosecution does not stand proved against the appellants beyond all reasonable doubts. 10. In the result, this appeal is allowed. The judgment and order of Court below is hereby set aside and the appellants are acquitted. 11. Since appellant Shyam Yadav @ Shyam Prasad Yadav is in jail custody, issue release order for his release from jail if not wanted in any other case. Sadanand Mukherjee, J. 12 I agree.